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Justice Anthony Kennedy wrestles with wedding cake case at Supreme Court

By The Associated Press

This article was originally published December 5, 2017 at 9:27 a.m. Updated December 5, 2017 at 12:58 p.m.

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People sleep outside of the Supreme Court in order to save places in line for Dec. 5 arguments in 'Masterpiece Cakeshop v. Colorado Civil Rights Commission,' Monday, Dec. 4, 2017, outside of the Supreme Court in Washington. (AP Photo/Jacquelyn Martin)


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WASHINGTON — Supreme Court Justice Anthony Kennedy voiced competing concerns Tuesday about respecting the religious beliefs of a Colorado baker who wouldn't make a wedding cake for a same-sex couple, and the gay couple's dignity.

Kennedy, the author of all the court's major gay-rights decisions, worried early in an argument at the high court that a ruling in favor of baker Jack Phillips might allow shop owners to put up signs saying "We do not bake cakes for gay weddings."

But later, Kennedy said the Colorado Civil Rights Commission seemed "neither tolerant nor respectful of Mr. Phillips' religious beliefs" when it found his refusal to bake a cake for the gay couple violated the state's anti-discrimination law.

Phillips and the couple, Charlie Craig and David Mullins, were all in the courtroom Tuesday to listen to an argument that otherwise seemed to put the conservative justices squarely with Phillips and the liberals on the couple's side.

The case pits Phillips' First Amendment claims of artistic freedom against the anti-discrimination arguments of the Colorado commission, and the two men Phillips turned away in 2012.

The argument was the first involving gay rights since the Supreme Court ruled in 2015 that states could not prevent same-sex couples from marrying.

The Trump administration is supporting Phillips in his argument that he can't be forced to create a cake that violates his religious beliefs. It appears to be the first time the federal government has asked the justices to carve out an exception from an anti-discrimination law.

Protesters on both sides filled the sidewalk in front of the court, shortly before the start of the argument.

"We got Jack's back," Phillips' supporters said. Backers of Craig and Mullins countered: "Love wins."

Inside the packed courtroom, the liberal justices peppered Kristen Waggoner, Phillips' lawyer, and Solicitor General Noel Francisco, with questions about how to draw a line to accommodate Phillips without eviscerating laws that require businesses that are open to the public to serve all customers.

The case's outcome could affect photographers and florists who have voiced objections similar to those of Phillips.

Justices Ruth Bader Ginsburg and Elena Kagan ticked off other categories of people who are involved in weddings to ask if they too might be able to refuse a same-sex couple. A graphic artist who designs menus and invitations? A jeweler? A hair stylist? A makeup artist?

Waggoner said the person who makes menus and invitations might be in the same position as Phillips but not the others because what they do is "not speech."

Kagan replied: "Some people might say that about cakes, you know?"

More generally, Justice Stephen Breyer in an exchange with Francisco said his concern is the court would have "no way of confining" a decision in favor of Phillips.

Kennedy's comments in the first half of the 75-minute argument seemed firmly in line with the concerns that he expressed in his opinion in the 2015 gay marriage case and other gay-rights decisions he has written over more than 20 years. Kennedy expressed his doubts when Francisco tried to describe a narrow range of situations in which Phillips and similarly situated business owners might have a right to refuse service.

"The problem for you is so many examples do involve speech. It basically means there is an ability to boycott," Kennedy said.

When Frederick Yarger, the Colorado solicitor general and the American Civil Liberties Union's David Cole stood up to defend the commission's ruling against Phillips, the conservative justices pounced.

Because same-sex marriage was not yet legal in Colorado in 2012, Justice Samuel Alito noted that Craig and Mullins could not have obtained a marriage license where they lived or gotten a local official to marry them. Yet Phillips supposedly "committed a grave wrong" when he refused to make them a cake, Alito said. That struck him as unfair, he said.

Chief Justice John Roberts pressed both Cole and Yarger on whether a Catholic legal services agency that provides help for free would have to take up a case involving a same-sex couple, despite the religious opposition to same-sex marriage. Yes, Cole said, "if they've provided the same services to couples who are straight."

Colorado native Neil Gorsuch, taking part in the most important gay rights case since he joined the Supreme Court in April, asked Cole whether a baker who made a cake shaped like a red cross to celebrate relief efforts also would have to make the same cake for the Ku Klux Klan.

Cole said no, because Colorado's anti-discrimination law refers to race, sex and sexual orientation, but does not protect KKK members.

Kennedy's questions in this portion of the argument seemed to reflect his strong First Amendment views in favor of free speech and religion that he has developed in nearly 30 years on the court.

Kennedy described comments made by one of the seven Colorado commissioners in the case as hostile to religion. "Did the commission ever disavow or disapprove" of those remarks, he asked. Not before today, Yarger said, disavowing them.

The exchange raised another possibility: that the court could return the case to the commission for reconsideration because its first decision was tainted by religious bias.

Colorado is among only 21 states with statewide laws barring discrimination against gays and lesbians in public accommodations.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 16-111, will be decided by late June.

Read Wednesday's Arkansas Democrat-Gazette for full details.

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Comments on: Justice Anthony Kennedy wrestles with wedding cake case at Supreme Court

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Whippersnapper says... December 7, 2017 at 10:09 a.m.

23cal,
You are mistaken. Read the Supreme Court Transcript. Colorado said that if Catholic charities provide free legal services to anybody (regardless of funding), they must provide the same services in opposition to their beliefs. That's on pages 47-50 of the transcript.
.
Regarding the housing of students, that is still irrespective of funding source. That's discussed on pages 94-95 of the transcript.
.
Don't think it is about quashing a viewpoint that Colorado disagrees with? Pages 58-59 of the transcript show that Colorado ignored complaints of bakeries that refused to bake cakes with messages they disagreed with if the message they ignored was traditional Judeo-Christian values, and Colorado said in those instances that bakeries couldn't be forced to endorse a message they found offensive.
.
This is about quashing traditional Judeo-Christian values. No more, no less. You might agree with the effort to do so, but at least be honest about the goal.
.
Here is the link to the transcript for those that are interested in the actual facts.
ww w.supremecourt. gov/oral_arguments/argument_transcripts/2017/16-111_f314.pdf

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PopulistMom says... December 7, 2017 at 11:32 a.m.

Whipper,

We don't have a tape recorder of what Christ said so we don't know that he even said anything about a man and woman, but he was speaking about divorce--not homosexuality. During the context of that time, marriage was between a man and a woman. I am sure that if Christ thought that homosexuality was a terrible sin, that Christ would have said something a little more specific? The supreme law of Christ always is "Love they Neighbor." On numerous occasions, Christ speaks about not judging others or throwing the first stone. Why is it that the far right Christians (and Nazis) think that it is so important to persecute Christians? Yes, to deny somebody a cake when you are a baker open to the public is persecution. It is no different than refusing to serve blacks. It is a meanness. My oldest son was getting his car washed a few weeks ago, and some old man called him a "f@ggot." I am sure that he thought himself a Christian. It is so sad the way so many pervert Christianity into a religion of hate. No wonder so many are disdainful of religion. So many of those who practice it are such creeps.

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Whippersnapper says... December 7, 2017 at 11:44 a.m.

Pop,
The supreme law of Christ is NOT "love thy neighbor" it is "Love God." The second is "love thy neighbor," but Biblical love means wanting what's best for someone regardless of what you want or what they think they want. Biblical love is the same love that makes a parent make their kids eat vegetables instead of just ice cream. Biblical love is what makes parents take their kids to get shots when they don't want it. Biblical love is what makes us condemn sin in all forms even when the sinner insists that is what they want. You might not understand love enough to understand this, but Jesus did. This is why He said that if you love Him, you'll keep His commandments (plural).

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RBear says... December 7, 2017 at 11:57 a.m.

gohogs, you really went off the deep end on that statement. Jesus knew about iPhones? So, was Jesus against texting while driving? Is that a sin? It violates the law in some states. Does that make it a sin in some states, but not in others?
...
Whipper, I read through the transcript and the passage you are referring to is VERY selective. If you continue further, the argument is based on a statement one commissioner made that even CO's AG would disagree with.
...
This is not about quashing traditional Judeo-Christian values. It's about providing equal services to individuals regardless of religion. When you bring in those "values," you have to ask the question who's values. For example, my Judeo-Christian church approves of same-sex marriages and opens its doors to couples wishing to have a same-sex marriage. It's legal under federal and state law and we support it. But does that mean our values are less than other values?
...
You see, by sliding down this VERY slippery slope we get into the area that Mr. Cole articulated at the end of his argument where "we would live in a society in which businesses across this country could put signs up saying we serve whites only, music lessons for Muslims need not apply, passport photos not for the disabled."
...
What I found ridiculous in the argument by the petitioner's attorney is that baking a cake is speech, but any other part of the wedding experience is not engaged in speech. Personally, I thought that was just ludicrous in her delineation of the issue.

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Packman says... December 7, 2017 at 12:11 p.m.

Hey Pop - Make up your damn mind. Do you support Roe v Wade or not? In the past you've said you do. You cannot support Roe v Wade and simultaneously oppose ending healthy pregnancies. That's worse than intellectually dishonest, that's insane. You are most certainly a CINO (Christian In Name Only), Pop. Like gohogs said, you interpret the Bible to suit your personal beliefs which makes you no different than those monsters at the Westboro Church of Christ.
.
As to whether homosexuality is a sin, I'll leave that question up to you true believers. All I know is there are insane health risks to that particular lifestyle choice according to the CDC. That doesn't make it a sin but does make it something that as a society we should strongly discourage.

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23cal says... December 7, 2017 at 12:21 p.m.

Whipper:
Sorry, got the wrong claim about Catholic Charities....there are so many of them I didn't know to which one you were referring.
I read pages 48-50---thank you for the citation. As Mr. Yarger points out "the question
is: Is this entity operating in the way of a retail store" Obviously the answer should be "no", as the Catholic Charity is GIVING AWAY (pro bono) its services, which is certainly not operating in the way of a retail store.
Secondly, as Roberts himself admits despite his attempt at a "Gotcha!", "It's clearly -- it's clearly covered by Colorado's law. It's not primarily religious. It's primarily legal." I'm afraid this is one of those times you need to render unto Caesar, that which is Caesar's. Allow me to also point out the Catholic attorneys doing this pro bono work are most likely writing off their hours as a tax deduction, and if that isn't federal funding I don't know what is.
*
I apologize for saying "This is quite simply a lie." I should have phrased it as "About "The state of Colorado believes they should be able to force Catholic charities to support the fight for gay rights under this law." They only do so when Catholic charities are acting as like a retail store. Again, my bad.
*
About "Regarding the housing of students, that is still irrespective of funding source. That's discussed on pages 94-95 of the transcript." Funding isn't mentioned there. However, I think you will have a hard time finding universities which don't take federal funding through things such as Pell grants, and we already know religious private schools get a pass on a lot of things. I suspect if they don't take federal funding, they would be exempt. However, I DO think Mr. Cole's response there bears repeating:"Well, I think under this
Court's doctrine in Employment Division versus
Smith, the question would be is it a generally
applicable neutral law? And if it's a
generally-applicable neutral law, there would
not be a free exercise question at all. Right?
And so -- and -- and the reason for
that, as Justice Scalia said in -- in
Employment Division versus Smith is equally
applicable here.
Once you open this up, once you say
generally applicable regulations of conduct
have exceptions when someone raises a religious
objection, or in this case have objections
where someone raises a speech objection, you're
in a world in which every man is a law unto
himself."
*
continued

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23cal says... December 7, 2017 at 12:22 p.m.

Whipper (continued)
Your reference to the transcript pp 58-59 is irrelevant. The crux was "Pages 58-59 of the transcript show that Colorado ignored complaints of bakeries that refused to bake cakes with messages they disagreed with if the message they ignored was traditional Judeo-Christian values,". MESSAGE was never a part of the baker's refusal. The message offered by the justices was "Judeo-Christian opposition to same-sex
marriage, and he requested cakes that expressed
that point of view". MESSAGE was never discussed by Phillips, he refused to bake a cake REGARDLESS of "message" because the cake was for two gay men. Please don't pretend a cake that says "Love" or "Congratulations" ---which it easily could have been---is an anti-Christian message.
*
Despite your claims, it isn't quashing Christian anything. It is protecting traditionally persecuted and discriminated against minorities....whether sexual orientation, color, creed, handicap, sex, etc.

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3WorldState1 says... December 7, 2017 at 12:42 p.m.

Will these bakers also deny service because of divorce or adultery? This is what I think is the biggest affront to God/Jesus/Ghost". Christians" (evangelicals) choosing what sins they believe is more "sinful". Everyone knows all sins are created equal under God. So a "Christian" thumbing their nose to God saying , "I don't care about the adultery, but the homosexuality, that is the real sin I will judge people on." Who the hell do they think they are? They choose to deny the homesx. but not the other sinners? Yeah, you'll be in hell right beside me. Though I think the big guy will give me a break because I'm not as ass to his creations.
God is gay. God is deformed. God is beautiful. God is all of these things. We are made in his image. It's as if evangelicals have no idea about the teachings of Jesus. I think they spend too much time on abortion, guns, and homos.
Mormons have taken the high ground from "real Christians".

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Vickie55 says... December 7, 2017 at 1:25 p.m.

3worldstate, I could not have said that any better than you did. If we are rating sins as either misdemeanor or felony then we are either playing God or it is nothing but discrimination

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PopulistMom says... December 7, 2017 at 1:41 p.m.

Pack man,

You have assumed that I am pro choice because I now lean Democratic. I always have been morally opposed to abortion except in limited circumstances. Everybody who aborts should be presented with information about adoption. There should be a bar on abortions after 20 weeks unless the baby is horribly deformed. The prevalence of abortion should be decreased by increased access to contraception. Just because aborttion is a problem, I cannot devote myself to solving every problem.

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